JACKSON, SC - When news broke that a Georgia agency had stopped a regional petroleum pipeline this week, Savannah Riverkeeper staff members hugged and cheered.
They had spent months organizing community opposition to the $1 billion project from South Carolina’s Upstate to Jacksonville, Fla. Pipeline opponents were elated that the Georgia Department of Transportation found no public need for the 360-mile long pipe.
But the battle isn’t over. The Kinder Morgan company is preparing to appeal the decision. And those tracking the pipeline dispute say South Carolina property owners should pay particular attention to the company’s plans.
Why? South Carolina apparently doesn’t provide the same private property rights protections as Georgia when pipeline companies come calling. For that reason, energy companies could more easily acquire land for petroleum pipelines in the Palmetto State than across the Savannah River in Georgia, critics of the pipeline say.
Unlike in Georgia, South Carolina law does not require the Department of Transportation to sign off on a company’s petroleum pipeline before project developers move to condemn property along the route, said Kinder Morgan opponents and highway department spokesman Pete Poore. Dukes Scott, director of the S.C. Office of Regulatory Staff, said he also is unaware of any authority his agency or the state Public Service Commission has for interstate oil pipelines.
“I don’t think South Carolinians quite get that they are not protected,” Savannah Riverkeeper Tonya Bonitatibus said as she stood last week at an Aiken County boat ramp where the pipe would cross the river.
Kinder Morgan’s “Palmetto Pipeline” would cross six South Carolina counties as well as the Sumter National Forest. It would extend through parts of Anderson, Abbeville, Greenwood, McCormick, Edgefield and Aiken counties before running past the town of Jackson and into Georgia. It would then go through south Georgia to Jacksonville, Fla. The Kinder Morgan pipeline would be a long spur from a main petroleum pipeline that runs from the Gulf Coast through a terminal in the Anderson County community of Belton.
Bonitatibus, like many, is fighting the pipeline because of the potential damage a spill could have on the Savannah River, which already is under stress from mercury pollution, industrial discharges and radioactive contamination. But she’s found allies in the people whose land would be used along the route.
Landowners in Georgia have been particularly vocal, but South Carolina property owners are starting to look more closely at the proposal, worried that their land could be acquired for the project against their will. Several hundred people showed up at a meeting Thursday night in North Augusta to voice concerns to Kinder Morgan about the proposal.
Judith Haskell McCarthy, 70, said her family has generously provided access through its land for power lines, water pipes and roads over the years.
But granting approval for a Kinder Morgan pipeline isn’t in the family’s interests because she and her sisters want to sell the property, she said. If Kinder Morgan runs a pipeline through their property near North Augusta, it would make the land harder to market, she said.
“It’s a scar,” McCarthy said. “Every scar, whether they realize it or not, hurts and devalues your property.”
Under federal law, the government can acquire property through the use of “eminent domain.” This power typically allows governments to condemn private land for public uses, such as for roads, as long as they compensate the property owner. That can occur through easements, which let landowners keep the property but requires them to allow access. Or it can mean the acquisition of the land.
In this case, however, a private pipeline company would use that power, Atlanta environmental lawyer Steve Caley said. Private petroleum pipeline companies received that authority in many Southern states at about the time of World War II, said Caley, who is with the non-profit legal service GreenLaw. But in Georgia, landowners receive an extra layer of protection.
Georgia’s law says a private pipeline company must show the transportation department that its project serves a public need or purpose before it can condemn land. Last week, with gas prices stable and supplies abundant, the Georgia DOT said it could not find a public need for the Kinder Morgan pipeline.
Kinder Morgan is assessing the ruling. The company said it rarely takes land for pipeline projects, instead preferring to negotiate with landowners. When it does condemn property, it will pay fair compensation, the company says.
“Eminent domain is rarely used on projects such as this (less than 1 percent) and only as a last resort,” company spokeswoman Melissa Ruiz said in an email. “And in those rare instances where eminent domain is used, the landowner is awarded full compensation for the limited use of his or her property by an independent tribunal.”
Attorney general involved
Few people seem convinced, including some state lawmakers.
Aiken County legislators have asked Attorney General Alan Wilson for an opinion on what rights pipeline companies have to condemn land in South Carolina. Draft legislation also is being prepared that could be introduced in South Carolina.
A pipeline from Belton to Jackson in South Carolina would still need state and federal environmental permits, including approval to disturb wetlands as well as permission to cross public roads. But the lack of state protection for private property rights is a concern, state Rep. Bill Hixon said.
“This is America,” Hixon, R-Aiken, said. “For somebody to just come in and take your land – it’s not supposed to work that way.”
While property rights are clearly a concern, folks like Steve Kneece worry that the pipeline will pollute the Savannah River, the groundwater people drink from and the extensive wetlands that attract wildlife and protect water quality in the Savannah.
“What’s in the pipe? Oil and gas. If that pipe leaks, it gets in the river,” Kneece, 54, said as he trudged up a dirt road after a morning of fishing on the Savannah.
A Navy veteran, the Jackson resident said he fishes for fun and to put food on the table.
“There is going to be something in that pipe,” Kneece said in his thick, Deep South drawl. “If the pipe leaks, there will be a dead bird. If the pipe leaks, there will be a dead fish. And I could have ate that fish.”
Spills from oil and gasoline pipelines are a concern nationally and in South Carolina. A spill this past week in California fouled beaches. Late last year, Kinder Morgan experienced a substantial leak near its terminal in Belton. The Colonial Pipeline Co. was hit with millions of dollars in state and federal fines for a major 1996 diesel spill that fouled the Reedy River near Greenville.
Bonitatibus said the Savannah River doesn’t need any more pollution. The river separating South Carolina and Georgia already carries health warnings for fish because of mercury contamination, as well as radioactive pollution from the Savannah River Site. The warnings urge people to limit fish consumption. The river also has received so many industrial discharges that it can’t accommodate much more industry, she said.
As he pulled his boat from the river at the Jackson boat landing last week, 72-year-old Johnny Johnson said he is bothered that the pipeline would cross the river near the landing, one of the few public river access areas in this part of Aiken County.
Surveyors have set stakes and orange flags in a scenic swamp approaching the boat ramp. The swamp, part of a plantation, runs to near the edge of the Savannah. Bonitatibus said flags apparently mark the route of the pipeline, which could be routinely inundated with water from the swamp.
“I don’t like it, I sure don’t,” Johnson said, noting that he recently saw surveyors setting stakes in the area of the boat ramp. “That ain’t right. They had three guys down here.”
Beefed up powers
One way to fight the pipeline is with the legislation Hixon is considering.
A draft bill, being circulated in the environmental community, says both the S.C. Department of Transportation and the state Department of Health and Environmental Control would have to sign off on any pipeline project that proposes to take land using eminent domain powers.
The proposed law would require a pipeline company to explain where it wanted to put the pipe while also requiring public notice and public hearings. That would have to take place before any proposals to take or condemn land.
While the law would add an extra layer of regulation that apparently doesn’t now exist in South Carolina, it’s questionable whether lawmakers would approve it before the 2015 Legislative session ends in early June. But Bonitatibus said plans are underway to attach the legislation to another bill so it could move faster.
In a May 19 letter to Attorney General Wilson, Aiken legislators said state law appears to give pipeline companies the same rights as utilities to condemn land.
Caley, the Atlanta attorney, said he has researched South Carolina law and can’t find any evidence the state has the same protections for property rights as Georgia does.
He said condemning property for a public purpose is legal and generally accepted by society. But to do so for a private pipeline favors one private interest over another, he said.
“There is a crying need” for South Carolina to adopt a law similar to Georgia’s, he said. “Why should a private company take (other) private property to make a profit? That’s what we’re talking about here.”